Admissible or inadmissible, that is the question...

[Quaere]

So, if I were to file for Summary Judgement.... it's "Admissible" to the Judge, as part of the Record???

It’s already admitted.

No one is going to say, “I object to the plaintiff making reference to something that is in the record.”

You are free to refer to anything in the record…but, the other side is equally free to explain, refute, argue the meaning of, or deny the truth of, the admission.

You don’t have any plans to file for summary judgment do you?

 

[kmckenn]

OK, here's a... THEE big twist in this... those "conversations with HR", were sexual harassment complaints, and the ORIGINAL letter was an attempt to say that the adverse employment actions within days of those conversations, had no relationship to the fact the Plaintiff had (allegedly vanilla, but in fact of a sexual harassment complaint / investigation) conversations with HR. By making THIS later admission, it's an admission (of some sort, to some extent) that the discipline (termination) was "at least in part" related to the "conversations" (IE - sexual harassment complaint / investigation) the Plaintiff had with HR.

Those vanilla-ly stated "conversations" were actually investigative/remedial oriented "conversations" in regards to sexual harassment complaint. The Defendant has done everything within their ability and beyond, to represent that harassment didnt happen, complaints weren't made, and that the disipline (ie-termination) had no relationship to those "conversations".

THAT is why this admission at this point is so critical, and the context it was made in.

There are many layers, and many twists to this entire scenario.

 

[Quaere]

Couldn't both statements be true? They are both so vague that any number of scenarios could be built around them.

and the ORIGINAL letter was an attempt to say that the adverse employment actions within days of those conversations, had no relationship to the fact the Plaintiff had conversations with HR.

I read this as, Plaintiff was not fired because he had conversations with HR.

For example, the disciplinary actions taken against the three individuals resulted at least in part from evidence uncovered based on conversations the individuals had with HR."

And I read this to mean that although plaintiff was meeting with HR to discuss one topic, during the conversation he made a comment that tipped management off to some completely unrelated infraction, which they then investigated and fired him for.

It all depends on what the meaning of "is" is. Or in this case, what the meaning of "relationship" is.

 

[kmckenn]

Your observations are reasonably accurate... The "tip-off" was actually a retaliatory actiion by the harasser against the harassed, 3 days after the harasser was terminated for the harassment (but formally only stated as "policy/rule violation"). The Defendant is attempting to poise themselves into a position that, "it's not retaliation, if what you find in an "investigation" (witch hunt) under retaliatory motive, CAN BE interpretable by the party of relaliatory motive, to be of adequate substantial value as to justifiy (act as pretext) for the retaliatory act".

Ya, I know this sounds INSANE, that this is exactly what the Statutes prohibit, but...... just 'cause there is a law against it, doesn't mean it does not happen.

Thus, why we have Courts

 

[Quaere]

Many a terminated employee rats out his co-workers as he leaves or even after he’s left.

The employer has a right/responsibility to react to the information, regardless of the informant’s motives.

This is why people who have something to hide generally refrain from making complaints about others.

People who live in glass houses...

 

[kmckenn]

For conversations sake, I think it makes an interesting argument, that "rat"'ing on a co-worker is clearly a retaliatory action, *IF* it was by THAT co-workers action(s) that the worker lost his/her job. Add to that, that it was not just an arbitrary action (IE - "stealing") that these adverse actions were based upon, but one that is of a LAW that states one who initiates an action under that law shall not be subjected to any retaliatory act, from any source. AGAIN, that is only for "conversations sake".

In this particular case, none of the allegations by the severed employee were substantially correct, but the employer did then seek out any and everything that could there after, be twisted or otherwise construed to be a punishable violation of any rule or poilcy, inconsistent with how they apply those same rules and policies otherwise.

 

[kmckenn]

On ANOTHER note of "admissbility"....

Innappropriate EMAILS were THEE reasons cited for the employers termination. They had gone over each and every email one of the employees emails within the companys email system. They found several that they felt could be trumped up as infractions of rules/policies, and this is where their case is based. Within that same email account that these alleged, (some, with some portions of it concealed to intentionally misrepresent and be taken out of context) actionable infractions occured, exists emails that either show the true context(s) and that they were NOT infractions, and yet other emails that incriminate the employers actions.

The question is: Is the entire contents of the email account "evidence", or is the employer allowed to sift through and only offer incriminating evidence from that source and deny access to that source that would otherwise undermine their position on evidence extracted from that source? From my NOVICE perspective, it would appear to be the equivalent of deposing a witness for incriminating testimony, and precluding cross examination of that witness. The only difference is it is not a "witness", but a journal, log, diary, etc. where they have selectively extracted "evidence" supportive of their position, and they are attempting to preclude the opposing parties equal access to the same source.

To me, from my NOVICE and biased perspective, it would seem that if they can not produce the entire record (email account), then the evidence that they had extracted from it should be inadmissible. It appears to be a prejudiced source to me.

OPINIONS?

 

[You Are Guilty]

FRE 106 says "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."

FRCP 32(a)(4) (which corresponds to CPLR 3117(a)(4)) provides "If only part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts."

So, assuming the other evidentiary problems with the emails are resolved (i.e. hearsay, authentication), I would expect the court would simply order unredacted versions turned over to you to use as you wish based on the above reasoning.

 

[kmckenn]

.... this does not adequately express how I feel, but it's all I know to say...



T H A N K - Y O U

 

[kmckenn]

Is there anyone else that can weigh in, and make an additional contributions, as to the admissiblity, and discovery of electronic records?

In "this CASE" this would be CRITICAL, as the alleged incriminating evidence utilized by the defendant, are instances on a (electonic) record which also negates at least some of the alleged incriminating evidence, and would otherwise produce evidence incriminating to the defendant, who holds the (electronic) record, and has otherwise manipulated, concealed portions of, or misrepresented information on that same (electronic) record to otherwise incriminate the Plaintiff.

 

[Quaere]

For conversations sake, I think it makes an interesting argument, that "rat"'ing on a co-worker is clearly a retaliatory action,

Yes it is. But the co-worker is not the one required to refrain from retaliation. The EMPLOYER is the one who is not allowed to retaliate. Is your claim under 42 U.S.C. 2000e-3(a)?

“LAW that states one who initiates an action under that law shall not be subjected to any retaliatory act, from any source.”

Are you sure about that last part?

... but the employer did then seek out any and everything that could there after, be twisted or otherwise construed to be a punishable violation of any rule or poilcy, inconsistent with how they apply those same rules and policies otherwise.

The employer’s motive is relevant but even if you can prove he was acting in retaliation, the plaintiff’s damages will be mitigated IF the employer was otherwise justified in terminating the employee.

The question is: Is the entire contents of the email account "evidence", or is the employer allowed to sift through and only offer incriminating evidence from that source and deny access to that source that would otherwise undermine their position on evidence extracted from that source?

I don’t see how they can authenticate an email unless they produce the complete email.

If the context is important and the employer fails to provide it, he’s going to have a big problem. But there are times when context is irrelevant.

For example: Company policy prohibits the use of sexual language in communications sent via company email. They find emails that include graphic sexual language and they can PROVE the plaintiff was the writer of those emails. I see no reason for any discussion of the context in which those emails were written unless they were written at the request of the employee’s supervisor!

 

[Quaere]

In "this CASE" this would be CRITICAL, as the alleged incriminating evidence utilized by the defendant, are instances on a (electonic) record which also negates at least some of the alleged incriminating evidence, and would otherwise produce evidence incriminating to the defendant, who holds the (electronic) record, and has otherwise manipulated, concealed portions of, or misrepresented information on that same (electronic) record to otherwise incriminate the Plaintiff.

I think you are asking about the following scenario:

An employee has been acting as a bookie in his office. He takes all of his bets via interoffice email. All levels of management have participated in the gambling. The employee’s company email account contains a record of every bet ever placed through him.

Management decides they don’t like the employee so they use the betting records to fire him.

Is it possible that some of the emails from that account will be “missing” when the employee conducts discovery? Yes.

Have the records for your case already been “lost”?

If you have not done so you may want to get a court order requiring the employer to preserve the records you need.

 

[kmckenn]

T H A N K - Y O U...

Care to "guide" me on exactly how that might be done (via PM's)?

As a SIDE NOTE.. if that RECORD was indeed "lost", they would ALSO lose EVERYTHING that makes THEIR case...

FWIW, I can prove the existence of the incriminating instance(s) within that record, by testimony of others.

 

[Quaere]

Y O U - A R E - W E L C O M E

Moving to PM.

 

[kmckenn]

Quaere, you have PM....